Ward v. Floors Perfect

645 S.E.2d 109, 183 N.C. App. 541, 2007 N.C. App. LEXIS 1179
CourtCourt of Appeals of North Carolina
DecidedJune 5, 2007
DocketNo. COA06-366.
StatusPublished

This text of 645 S.E.2d 109 (Ward v. Floors Perfect) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. Floors Perfect, 645 S.E.2d 109, 183 N.C. App. 541, 2007 N.C. App. LEXIS 1179 (N.C. Ct. App. 2007).

Opinions

TYSON, Judge.

David J. Ward ("plaintiff") appeals from the Full Commission of the North Carolina Industrial Commission's ("the Commission") opinion and award entered finding plaintiff had not sustained a compensable change of condition. Floors Perfect and Penn National Insurance (collectively, "defendants") cross appeal. We affirm in part, reverse in part, and remand.

I. Background

Plaintiff was the owner and operator of Floors Perfect. Plaintiff installed carpet, vinyl tile, and linoleum from 1985 to 1997. Plaintiff stopped performing flooring work in September 1997, but continued to operate his business by hiring others to perform the work. In 1998, plaintiff sought further education and stopped working due to pain in his knees. Plaintiff began attending Vance Granville Community College and obtained a General Associate of Arts degree in June 2001.

After incurring an injury on 27 August 1997, plaintiff filed a claim for workers' compensation benefits. Plaintiff presented deposition testimony taken 27 July 1999 of his treating physician Dr. G. Hadley Callaway ("Dr.Callaway"), an orthopedic surgeon. On 8 February 2001, the Commission entered an opinion and award. The Commission determined plaintiff had developed a compensable occupational disease in both knees, but that a medial meniscus tear was not compensable. The Commission concluded:

1. As a result of his employment, plaintiff has developed a compensable occupational disease, bilateral patellofemoral pain, a condition which is due to causes and conditions peculiar to his employment and which is not a condition to which the general public is equally exposed. N.C. Gen.Stat. § 97-53(13).

2. Subject to the limitations of N.C. Gen. Stat. § 97-25.1, defendants are responsible for payment of all reasonably necessary medical expenses which tend to effect a cure, provide relief or lessen the period of plaintiffs disability which are incurred for plaintiff's treatment of his bilateral patellofemoral pain. N.C. Gen.Stat. § 97-2(19), 97-25.

3. Plaintiff has not suffered any loss of wage earning capacity as a result of his bilateral patellofemoral pain since plaintiff has failed to prove by the greater weight that he is incapable of work in any employment or that he is capable of some work but has been unsuccessful after making reasonable efforts to locate employment. Moreover, plaintiff voluntarily removed himself from the labor market to pursue his education and the greater weight of the evidence fails to establish any periods of time for which he would be entitled to benefits for either temporary partial or total disability. N.C. Gen.Stat. § 97-29. Russell v. Lowes Prod. Distrib., 108 N.C.App. 762, 425 S.E.2d 454 (1993).

*1114. Plaintiff has reached maximum medical improvement from his bilateral patellofemoral pain and has sustained a five percent permanent impairment to his right leg and a two and one-half percent permanent impairment to his left leg for which he is entitled to compensation pursuant to N.C. Gen.Stat. § 97-31(15).

(Emphasis supplied). Plaintiff appealed the Commission's opinion and award and this Court affirmed the Commission's decision. See Ward v. Floors Perfect, 151 N.C.App. 752, 567 S.E.2d 465 (2002) (unpublished), disc. rev. denied, 357 N.C. 169, 581 S.E.2d 756 (2003). On 19 May 2003, defendants submitted a Form 28B indicating their payment in full to plaintiff for a 5% permanent partial impairment rating to his right leg and a 2.5% permanent partial impairment rating to his left leg.

On 13 June 2003, plaintiff alleged a "change of condition" pursuant N.C. Gen. Stat. § 97-47. The matter was heard before Deputy Commissioner Phillip A. Holmes ("Deputy Holmes") on 10 December 2003. Plaintiff and Jane Johnson ("Johnson") testified before Deputy Holmes. Plaintiff also presented a second deposition of Dr. Callaway which was taken 2 April 2004. On 9 August 2004, Deputy Holmes filed an opinion and award wherein he concluded plaintiff had "undergone a change of condition affecting his wage-earning capacity." Defendants appealed Deputy Holmes's decision to the Full Commission.

On 28 October 2005, the Full Commission reviewed the transcript of the hearing before Deputy Holmes, the deposition testimony of Dr. Callaway, and concluded:

1. In order to establish a change of condition, plaintiff must show conditions different from those present at the time of the prior award. It is not sufficient to show "a continued capacity of the same kind and character and for the same injury." Grantham v. R.G. Barry Corp., 127 N.C.App. 529, 491 S.E.2d 678 (1997), cert. denied, 347 N.C. 671, 500 S.E.2d 86 (1998). Edwards v. John Smith & Sons, 49 N.C.App. 191, 270 S.E.2d 569 (1980), disc. rev. denied, 301 N.C. 720, 274 S.E.2d 228 (1981). Plaintiff has not proved he experienced a change of condition as his wage earning capacity was unchanged and any physical incapacity was of the same kind and character as existed at the time of the prior award. N.C. Gen.Stat. § 97-47.

2. As a result of his compensable occupational disease, plaintiff was capable of returning to work earning diminished wages beginning November 6, 2002.

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Bluebook (online)
645 S.E.2d 109, 183 N.C. App. 541, 2007 N.C. App. LEXIS 1179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-floors-perfect-ncctapp-2007.